Kerala High Court
The State Of Kerala vs V.N.Public Health And Education Trust on 5 December, 2019
Bench: S.Manikumar, A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THURSDAY, THE 05TH DAY OF DECEMBER 2019 / 14TH AGRAHAYANA, 1941
WA.No.2443 OF 2019
AGAINST THE JUDGMENT DATED 19.11.2019 IN WP(C) 27266/2019(G) OF
HIGH COURT OF KERALA
APPELLANT/1ST RESPONDENT:
THE STATE OF KERALA, REPRESENTED BY SECRETARY TO
GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM 695001
BY SPL.GOVERNMENT PLEADER M.A. ASIF
RESPONDENTS/PETITIONER & RESPONDENT NO.2:
1 V.N.PUBLIC HEALTH AND EDUCATION TRUST, NO.25,
JAWAHAR MAIN ROAD, NRT NAGAR, THENI,
TAMIL NADU-625531, REPRESENTED BY ITS AUTHORIZED
SIGNATORY V. ANIL KUMAR, THALIPARAMBA.
2 THE MEDICAL COUNCIL OF INDIA, DWARAKA,
NEW DELHI- 110077, REPRESENTED BY ITS SECRETARY.
R1 BY ADV. SRI.S.VINOD BHAT
R1 BY ADV. KUM.ANAGHA LAKSHMY RAMAN
SRI.TITUS MANI FOR R2
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.12.2019,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
W.A.No.2443/2019
JUDGMENT
Dated this the 5th day of December 2019 Shaffique, J This appeal is filed by the 1 st respondent/State of Kerala in W.P. (C).No.27266 of 2019, challenging the judgment dated 19.11.2019. By the impugned judgment, the learned Single Judge had, while quashing Ext.P6 communication of the State Government, directed the State Government to issue the Essentiality Certificate on or before 30.11.2019.
2. The short facts of the case would disclose that, the petitioner being an educational institution had made all infrastructural facilities for starting a Medical College. They applied for the Essentiality Certificate during the previous years, which were granted. But there were some defects in the said certificate, as a result of which the petitioner was unable to start the College. However, for academic year 2020-2021, petitioner again submitted an application which was not considered. Ultimately, the petitioner approached this Court by filing W.P.(C).No.23460/2019 inter alia seeking for a direction to take a decision on Ext.P2 application submitted on 19.8.2019. The learned Single Judge after considering the matter directed the Government to take a decision within a period of 45 days from the date of receipt of a 3 W.A.No.2443/2019 copy of the judgment. The petitioner had to approach the learned Single Judge by filing the writ petition since MCI had informed the petitioner that unless the documents required are produced within the specified time limit, their application will not be considered. MCI gave a cut off date finally up to 31.10.2019. Pursuant to the direction issued by the learned Single Judge, Ext.P6 order came to be passed which reads as under :
"I am directed to invite your attention to the reference cited and to inform you that, at present the State Government is not granting NOC and Essentiality Certificate for starting new medical colleges in the private sector. Hence, your request to issue renewed Essentiality Certificate for establishment of a new medical college at Palakkad cannot be considered at present."
Learned Single Judge observed that the reasons stated for denying the Essentiality Certificate is totally improper and therefore quashed Ext.P6 and issued the aforesaid direction.
3. While impugning the aforesaid judgment, learned Government Pleader submits that the Government had taken into consideration various factors before denying Essentiality Certificate. It is pointed out that several Medical Colleges had been closed down and students who had admitted in those colleges had to be reallocated to various other colleges where there is no facility to accommodate them and even now some students are yet to be accommodated. That apart, Palakkad is a place where there are several Medical Colleges 4 W.A.No.2443/2019 and most of the colleges does not have sufficient clinical material as required, for starting Medical Colleges.
4. We also heard the learned Standing Counsel for the MCI who submitted that the last date for technical scrutiny and assessment is fixed on 15th December, 2019 and as per the procedure, MCI will have to form a team of Officers for inspection to ensure that the college complies with all the requirements. As the matter stands now, the Essentiality Certificate and consent for affiliation from the University had not been obtained.
5. It is also pointed out by the learned Government Pleader that the University had also rejected the request of the petitioner for consent for affiliation. Though the petitioner had challenged the same before this Court by filing W.P.(C).No.29098/2019, the learned Single Judge had rejected the prayer for an interim order against the University for grant of consent for affiliation, as per its order dated 31.10.2019.
6. On the other hand, the learned counsel for the petitioner would submit that all along the Government was delaying the Essentiality Certificate and the application was kept pending without being considered. According to the petitioner, the application was submitted on 20.06.2019, which fact of course is disputed by the learned Government Pleader, who submits that the application was submitted only on 19.8.2019. We don't want to enter into the 5 W.A.No.2443/2019 controversy in that regard, especially on account of the fact that, already the learned Single Judge in W.P.(C).No.23460/2019 had directed the Government to consider the said application within a specified time, which ultimately resulted in Ext.P6 order.
7. Learned counsel for the petitioner would submit that the University had rejected the consent for affiliation only on account of the fact that the Essentiality Certificate has not been produced. If Essentiality Certificate is produced, the University will consider their application for consent of affiliation.
8. The only question to be considered in this writ appeal is whether there is any valid reason for rejecting the Essentiality Certificate. The delay is not a matter which should be considered at this point of time. It is for the MCI to consider that, if at all Essentiality Certificate is issued, whether they should be in a position to process the application within the specified time or such extended period, as the case may be.
9. In so far as, in Ext.P6, the only reason stated is that the State Government is not granting NOC and Essentiality Certificate for starting new Medical Colleges in private sector, the actual reason for denying the said benefit has not been stated. It is well settled that there cannot be a policy restricting the right of a Management to start a Medical College. If at all there is a policy, it has to be produced by the Government. No such materials have been produced. Even 6 W.A.No.2443/2019 though arguments are raised by the learned Government Pleader on behalf of the State, it is not supported by any materials. This is also a case in which no counter affidavit had been filed by the Government. Even otherwise, when Ext.P6 order does not speak for itself and the reasons stated cannot be sustained, learned Single Judge was justified in quashing Ext.P6 and issuing the direction as aforesaid. We don't think that any grounds are made out for interference.
The writ appeal is dismissed.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
A.M.SHAFFIQUE
kp True copy JUDGE
P.A To Judge